Brown v. Jaimovich

FIRST DIVISION

March 31, 2006

No. 1-05-0146

MICHAEL BROWN, Individually and as ) Appeal from the

Independent Administrator of the ) Circuit Court of

Estate of MICHAEL BROWN, JR., ) Cook County.

Deceased, and JEANNE BROWN, )

Individually, )

)

Plaintiffs-Appellees, )

)

v. )

)

DAVID JAIMOVICH, M.D., CRITICARE )

SYSTEMS, LTD., JAVEED AKHTER, M.D., )

and ADVOCATE CHRIST MEDICAL CENTER, )

d/b/a ADVOCATE CHRIST HOSPITAL AND )

MEDICAL CENTER and d/b/a HOPE )

CHILDREN'S HOSPITAL, )

)

Defendants-Appellants, )

)

and )

)

(George Skarpathiotis, M.D., George )

Skarpathiotis, M.D., S.C., a )

corporation, Chicago Pediatrics, )

Ltd., a corporation, Palos )

Pediatrics, Ltd., a corporation, and )

Companion Care Medical Group, Inc., )

Suburban Pediatric Pulmonology ) Honorable

Associates, S.C., Jaidid, LLC, ) Michael J. Hogan,

Defendants). ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Defendants David Jaimovich, M.D., Criticare Systems, Ltd.,

Javeed Akhter, M.D., and Advocate Medical Center, doing business as

Advocate Christ Hospital and Medical Center and doing business as

of the Hope Children's Hospital appeal from an order of the circuit

court converting them from respondents in discovery to defendants

1-05-0146

under section 2-402 of the Illinois Code of Civil Procedure (Code)

(735 ILCS 5/2-402 (West 2004)), in plaintiffs Michael Brown,

individually and as the independent administrator of the Estate of

Michael Brown, Jr., and Jeanne Brown's medical malpractice action

against defendants. This matter is before us on interlocutory

appeal pursuant to the following question certified by the trial

court:

"Whether a trial court had discretion to

extend the six-month statutory window for

conversion set forth in 735 ILCS 5/2-402 after

the September 25, 2003 decision in Robinson v.

Johnson, 346 Ill. App. 3d 895, 809 N.E.2d 123,

284 Ill. Dec. 1 (1st Dist. September 25, 2003)

(No. 1-02-2121), rehearing denied (Mar. 22,

2004), opinion supplemented on denial of

rehearing by Robinson v. Johnson, 346 Ill.

App. 3d 895, 2004 WL 594098 (1st Dist. Mar.

25, 2004), and subsequently order conversion

of respondents in discovery to defendants

after the initial six-month statutory window

had expired."

For the reasons set forth below, we answer the certified question

in the affirmative, as limited.

STATEMENT OF FACTS

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This lawsuit arose as a result of the death of plaintiffs'

eight-year-old son due to the alleged negligence of certain

entities and individuals. On April 11, 2003, plaintiffs filed

their complaint against Dr. George Skarpathitis, George

Skarpathiotis, M.D., S.C., a corporation, Chicago Pediatrics, Ltd.,

and Palo Pediatrics, Ltd. and named, inter alia, Dr. Javeed Akhter,

Companion Care Medical Group, Inc., Suburban Pediatric Pulmonology

Associates, S.C., Jaidad, LLC, Dr. David Jaimovich, Criticare

Systems, Ltd., and Advocate Christ Medical Center as respondents in

discovery. Pursuant to section 2-402, plaintiffs had until October

11 to convert respondents in discovery into defendants.

Thereafter, plaintiffs submitted discovery requests to Akhter. On

June 2, plaintiffs also submitted discovery requests to Jaimovich.

On September 3, Akhter answered plaintiffs= discovery. On

September 18, plaintiffs filed a motion to extend the time for

discovery and to extend the time to convert respondents in

discovery for 120 days to February 11, 2004, because, in part,

respondents had not answered discovery and had not appeared for

depositions.

On September 25, 2003, the Robinson court answered the

following certified question in the negative: "whether a trial

court has discretion pursuant to Illinois Supreme Court Rule 183

(134 Ill. 2d R. 183) to extend the six-month statutory period set

forth in section 2-402 *** for converting respondents in discovery

to defendants." Robinson, 346 Ill. App. 3d at 897-98.

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Subsequently, the Robinson plaintiff filed a petition for rehearing

and the court granted leave to the Illinois Trial Lawyers

Association to file an amicus curiae petition for rehearing.

Robinson, 346 Ill. App. 3d at 907.

On September 26, the trial court here, unaware of Robinson,

granted plaintiffs= motion to extend to February 11, 2004. On

October 6, Dr. Akhter cancelled his deposition that had been

previously scheduled and confirmed for this date. On October 23,

Akhter filed a motion to terminate his status as a respondent in

discovery and to reconsider the court's September 26 order based on

Robinson. Six days later, Advocate Christ Medical Center filed a

motion to terminate its status as a respondent in discovery. On

October 30, the trial court set a briefing schedule and set a

status date for December 22.

On December 2, plaintiffs filed an emergency motion for an

extension of time to file a response to Dr. Akhter=s motion to

reconsider, which the trial court granted, giving plaintiffs until

December 13 to respond, and set the case for status on January 13.

On December 12, the trial court granted plaintiffs= additional

emergency motion for an extension to respond, and continued

defendants' motion to terminate and reconsider for status on

January 13.

On January 13, 2004, the trial court continued defendants'

motions to terminate and reconsider to March 15. On February 11,

plaintiffs filed an emergency motion to extend time to convert

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respondents into defendants on the basis respondents filed motions

to reconsider and a petition for rehearing was pending in Robinson.

Plaintiffs' motion was continued to February 17. On February 12,

Dr. Jaimovich answered plaintiffs= discovery requests propounded in

June 2003. On February 17, the trial court continued plaintiffs=

emergency motion to extend time to convert to March 15. On March

15, the trial court continued defendants and plaintiffs= motions to

March 20 for status.

On March 25, the Robinson court denied the petitions for

rehearing, but supplemented and modified its opinion. On

rehearing, the Robinson court addressed the applicability of

section 2-1007 of the Code, "Extension of Time and Continuances,"

to the issue at hand as well as prospective versus retroactive

applicability of its ruling. The Robinson court held that

"our decision that Supreme Court Rule 183 does

not provide a basis to extend the six-month

time limit of section 2-402 applies only to

those cases in which plaintiffs sought and

received extensions of their section 2-402

motions beyond that section's six-month time

limit commencing after the date of our

decision in this case." Robinson, 346 Ill.

App. 3d at 911.

On April 7, plaintiffs filed a motion to convert certain

respondents in discovery into defendants, including defendants

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before this court. On April 19, a briefing schedule was set with a

status date set for June 16. On May 3, plaintiffs filed their

brief in support of probable cause for conversion. Thereafter,

defendants filed responses to plaintiffs' motion to convert.

However, on June 2, plaintiffs filed an emergency motion to strike

the briefing schedule based on the fact the plaintiff in Robinson

had filed a petition for leave to appeal (PLA) to the supreme

court, requesting that their motion to convert be continued until

the supreme court resolved the PLA. The trial court granted

plaintiffs= motion to strike the briefing schedule and set a status

date for June 30. On June 30, the trial court continued the case

to October 13.

On October 6, the supreme court denied the PLA filed in

Robinson. On October 13, the trial court in the instant case set

the matter for status on November 5 and thereafter set the case for

hearing on December 6. On December 6, the trial court granted

plaintiffs= motion to convert respondents in discovery to

defendants, denied defendants= motions to terminate status as

respondents in discovery, and denied defendants= motions to

reconsider its order of September 26, 2003. At a hearing on this

date, plaintiffs' counsel in argument indicated that the reason for

the delay in ruling on motions in this case was because the parties

and court were waiting for the Robinson issue to be decided. None

of respondents' attorneys objected to this comment, nor did they

argue to the contrary in their arguments. Thereafter, plaintiffs

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filed their amended complaint, adding respondents in discovery as

defendants.

On January 4, 2005, Dr. Akhter filed an emergency motion to

reconsider the court's December 6, 2004, order or, in the

alternative, to clarify the appellate court=s language and to

certify a legal question of law for appeal. Dr. Jaimovich and

Criticare joined this motion. The trial court denied the motion

to reconsider, but granted the motion to clarify and certify a

question for appeal. On January 13, the trial court entered an

order allowing defendants an immediate appeal and certified for

appeal the question set forth above. Thereafter, Akhter filed a

petition for leave to appeal the certified question in this court

pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), joined by

Advocate Christ Medical Center, Criticare Systems, Ltd., and

Jaimovich, which we granted.

ANALYSIS

The rules with respect to our review of certified questions

are well-settled:

" 'This court's examination in an

interlocutory appeal is strictly limited to

the questions certified by the trial court

and, as with all questions of law, is a de

novo review.' [Citation.] We will ordinarily

not expand the question under review to answer

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other questions that could have been included

but were not. [Citations.] Our task is to

answer the certified questions rather than to

rule on the propriety of any underlying order.

[Citation.] 'In the interests of judicial

economy and reaching an equitable result,

however, a reviewing court may go beyond the

certified question[s] and consider the

appropriateness of the order giving rise to

the appeal.' [Citations.]" Fosse v.

Pensabene, 362 Ill. App. 3d 172, 177, 838

N.E.2d 258 (2005).

Section 2-402 provides in pertinent part:

"A person or entity named as a respondent

in discovery in any civil action may be made a

defendant in the same action at any time

within 6 months after being named as a

respondent in discovery, even though the time

during which an action may otherwise be

initiated against him or her may have expired

during such 6 month period." 735 ILCS 5/2-402

1

(West 2004).

1

The following language had been added to the statute in 1995,

but was held unconstitutional in 1997: "No extensions of this 6

month period shall be permitted unless the plaintiff can show a

failure or refusal on the part of the respondent to comply with

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timely filed discovery." See Best v. Taylor Machine Works, 179

Ill. 2d 367, 689 N.E.2d 1057 (1997). Additionally, the statute has

again been amended, effective January 1, 2006. The paragraph now

reads:

"A person or entity named as a respondent in

discovery in any civil action may be made a

defendant in the same action at any time

within 6 months after being named as a

respondent in discovery, even though the time

during which an action may otherwise be

initiated against him or her may have expired

during such 6 month period [sic]. An

extension from the original 6-month period for

good cause may be granted only once for up to

90 days for (i) withdrawal of plaintiff's

counsel or (ii) good cause. Notwithstanding

the limitations in this Section, the court may

grant additional reasonable extensions from

this 6-month period for a failure or refusal

on the part of the respondent to comply with

timely filed discovery." 735 ILCS 5/2-402

(Supp. 2006).

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Defendants contend that the trial court erred in granting

plaintiffs' motion for an extension and in ultimately converting

them to defendants nine months after the modified decision in

Robinson because its conduct was contrary to Robinson, which,

according to clear Illinois law, became effective on September 25,

2003, not March 25, 2004, since rehearing was not granted and the

sole modification was an addition to the opinion making application

2

of its ruling prospective. Defendants also argue that plaintiffs

do not fall within the class of plaintiffs prospective application

was intended to protect because Robinson sought to only protect

plaintiffs who had received extensions before the court's ruling

and where respondents in discovery had actually been converted to

defendants, which is not the case here. Defendants also maintain

that prospective application of the Robinson holding was not

available and was unwarranted because the court did not create a

new rule of law. In this regard, defendants argue that Robinson

3

should have retroactive application.

Plaintiffs contend that the trial court did not err in

2

Defendants state on at least four occasions that the sole

modification to the Robinson opinion was adding prospective

language. This is clearly erroneous as detailed above. Robinson

also addressed the applicability of section 2-1007 to the issue at

hand.

3

We decline to address this argument. The Robinson court

concluded that prospective application was proper and defendants

have not cited any authority that we have the ability to second

guess or reverse that determination.

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granting their extension and allowing conversion because Robinson

became effective on March 25, 2004, and they had sought and

received an extension prior to this date. Plaintiffs also argue

that Robinson is ambiguous regarding the effective date of its

decision since the court failed to specify which date it was

referring to and, under principles of justice and fairness, such

ambiguity should be construed in their favor. Plaintiffs maintain

that to apply the Robinson ruling to them would result in the

inequity Robinson sought to avoid and would severely prejudice

them.

The question before us, when did the Robinson ruling,

particularly its prospective application, become effective is not

clearly answered by application of Illinois law. There is no

question that Illinois courts have held that

"the filing of a petition for rehearing does

not alter the effective date of the judgment

of a reviewing court unless that court allows

the petition for rehearing, in which event the

effective date of the judgment is the date

that the judgment is entered on rehearing.

(See 73 Ill. 2d R. 367(a).)" PSL Realty Co.

v. Granite Investment Co., 86 Ill. 2d 291,

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305, 427 N.E.2d 563 (1981). 4

See also Berg v. Allied Security, Inc., 193 Ill. 2d 186, 191-92,

737 N.E.2d 160 (2000); Hickey v. Riera, 332 Ill. App. 3d 532, 542,

774 N.E.2d 1 (2001); People v. Brooks, 173 Ill. App. 3d 153, 157,

527 N.E.2d 436 (1988). It is equally true there is no question

that Illinois courts have held that, when a petition for rehearing

has been filed, the judgment of the appellate court does not become

final until the petition is denied. Glasser v. Essaness Theatres

Corp., 346 Ill. App. 72, 89, 104 N.E.2d 510 (1952). This is so

because the "power to vacate a judgment during term is inherent in

all courts." Glasser, 346 Ill. App. at 89. See also People v.

Brown, 204 Ill. 2d 422, 425, 792 N.E.2d 788 (October 18, 2002),

modified upon denial of rehearing, March 31, 2003 (although the

supreme court issued a written decision on October 18, 2002, it

held that because the defendant had filed a petition for rehearing,

the October 18 decision was not final and was subject to

modification); Berg, 193 Ill. 2d at 192 (holding that the appellate

court's original July 1, 1999, decision was not final because the

defendants had filed petitions for rehearing).

With respect to the first rule of law above, none of the cases

4

Rule 367(a) says nothing about the effect of a petition for

rehearing on the court's decision.

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setting forth this rule dealt with a modified opinion upon denial

of rehearing that added prospective application of its ruling

analysis. In each of those cases, the supplemental opinion upon

denial of rehearing dealt with a change that did not relate to the

original holding. The forerunning case and apparently the first to

announce the rule was PSL Realty Co., relied upon by defendants.

In PSL Realty Co., the appellate court reviewed a trial court order

entering a temporary restraining order (TRO) and appointing a

receiver. PSL Realty Co., 86 Ill. 2d at 303. On July 23, 1976,

the appellate court issued its decision, dissolving the TRO and

receivership. However, the appellate court remanded the cause to

the circuit court for a determination of the proper amount of fees

and expenses to be paid to the receiver for its past work. PSL

Realty Co., 86 Ill. 2d at 304. Both parties filed petitions for

rehearing, but neither challenged the dissolution of the

receivership. PSL Realty Co., 86 Ill. 2d at 304. The appellate

court entered a supplemental opinion upon denial of rehearing on

September 23, 1976. PSL Realty Co., 86 Ill. 2d at 304. The

question before the supreme court was what was the effective date

of the judgment of the appellate court. PSL Realty Co., 86 Ill. 2d

at 304. In PSL Realty Co., the petitions for rehearing were not

allowed, but were denied. PSL Realty Co., 86 Ill. 2d at 305.

However, the original opinion was modified on denial of rehearing,

but only as to the matters to be considered on remand.

Accordingly, the PSL Realty Co. court held that the "judgment of

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the appellate court entered on July 23, 1976, was final as to the

dissolution of the receivership." PSL Realty Co., 86 Ill. 2d at

305. More specifically, the supplemental opinion "did nothing to

alter the holding of the original opinion" and "confirmed the

holding of the original opinion." PSL Realty Co., 86 Ill. 2d at

310. As such, July 23, 1976, was the effective date of the

appellate court's decision.

In Brooks, also relied upon by defendants, the question before

the court was whether the decision in People v. Zehr, 103 Ill. 2d

472, 469 N.E.2d 1062 (March 23, 1984), modified upon denial of

rehearing, September 28, 1984, applied to the voir dire examination

in Brooks that was conducted on March 31, 1984. Brooks, 173 Ill.

App. 3d at 156. The State maintained that Zehr did not apply

because, at the time of the voir dire, the petition for rehearing

in Zehr was pending and, thus, the ruling was not applicable.

Brooks, 173 Ill. App. 3d at 156. The Brooks court disagreed with

the State, finding that "the modification [in Zehr] concerned a

matter completely unrelated to the voir dire [sic] issue originally

addressed by the supreme court in the July 31, 1984, Zehr opinion.

Therefore, the modification of the unrelated issue did not

5

supersede and vacate that portion of Zehr dealing with voir dire."

Brooks, 173 Ill. App. 3d at 157. Accordingly, the Brooks court

5

How the Zehr decision was modified is not evident from the

supplemental opinion. However, it is clear that it did not involve

prospective application because the opinion contains no discussion

of prospective application.

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concluded that "the law as set forth in Zehr on July 31, was

clearly applicable to the voir dire proceeding in defendants'

case." Brooks, 173 Ill. App. 3d at 157.

The instant case is different than PSL Realty Co. and Brooks

because, although the supplemental opinion in Robinson confirmed

the court's previous ruling, the supplemental opinion added

additional analysis regarding that ruling and, therefore, related

to the original holding. Thus, PSL Realty Co. and Brooks are not

on point and do not support defendants' position here that the

effective date of Robinson was September 25, 2003.

Moreover, the supreme court cases cited by the parties and

others located through our independent research that deal with

prospective application of the court's ruling provide a date upon

which the prospective application became effective and most were

not the date of the court's original decision. Defendants rely on

Torres v. Walsh, 98 Ill. 2d 338, 456 N.E.2d 601 (September 16,

1983), modified on denial of rehearing, December 2, 1983, Sunich v.

Chicago & Northwest Transportation Co., 106 Ill. 2d 538, 478 N.E.2d

1362 (1985), and Elg v. Whittington, 119 Ill. 2d 344, 518 N.E.2d

1232 (November 16, 1987), modified upon denial of rehearing,

February 11, 1988, in support of their argument that the original

date of a decision is controlling with respect to prospective

application. In Torres, the opinion was originally silent upon the

applicability of its ruling. In the modified opinion, however, the

court added the following language:

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"[S]ince this is the first pronouncement of

this court allowing the intrastate application

of the doctrine of forum non conveniens, we

believe it is only equitable that we apply our

holding to this case *** and to all cases

filed on or after September 16, 1983, the date

on which the opinions in this case and [the

companion case] were filed." Torres, 98 Ill.

2d at 353.

See also Sunich, 106 Ill. 2d at 544-45 (confirming that Torres only

applied to the parties at issue and to cases filed on or after the

date the decision was filed (September 16, 1983)). In Elg, the

court, too, added prospective application analysis in its modified

opinion, holding that the court's interpretation of Rule 304(a)

adopted in its decision "will apply prospectively to all cases in

which the notice of appeal was filed or due to be filed on or after

our decision in this case was first announced, November 16, 1987."

Elg, 119 Ill. 2d at 359. These cases specifically and explicitly

related their prospective application back to the original filing

date. The same is not true in the instant case.

Other cases have addressed the question of the effective date

of prospective applicability with differing dates. See Alvis v.

Rebar, 85 Ill. 2d 1, 28, 421 N.E.2d 886 (April 17, 1981), modified

upon denial of rehearing, June 4, 1981 (adding in supplemental

opinion that the applicability of the rule announced in the

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decision applied to the parties on appeal and "all cases in which

trial commences on or after June 8, 1981, the date on which the

mandate in this case shall issue"); Skinner v. Reed-Prentice

Division Package Machinery Co., 70 Ill. 2d 1, 17, 374 N.E.2d 437

(December 17, 1977), supplemental opinion on denial of rehearing,

January 26, 1978, modified, March 1, 1978 (adding in supplemental

opinion that the court's ruling "will apply prospectively to causes

of action arising out of occurrences on and after March 1, 1978");

Stevens v. Silver Manufacturing Co., 70 Ill. 2d 41, 46, 374 N.E.2d

455 (1977) (same dates and ruling as Skinner); Robinson v.

International Harvester Co., 70 Ill. 2d 47, 50, 374 N.E.2d 458

(December 12, 1977), modified, January 26, 1978 (same applicability

as Skinner, i.e., to causes of action arising after March 1, 1978);

Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 359, 367 N.E.2d 1250

(August 8, 1977), rehearing denied, October 3, 1977 (holding that

the rule announced in the original decision applied to the

plaintiffs and "only to cases arising out of future conduct");

Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326,

338, 211 N.E.2d 253 (1965) (decision "given prospective effect

only, from the date upon which the opinion in this case becomes

final"); Molitor v. Kaneland Community Unit District No. 302, 24

Ill. 2d 467, 470, 182 N.E.2d 145 (1962), and Molitor v. Kaneland

Community Unit District No. 302, 18 Ill. 2d 11, 28-29, 163 N.E.2d

89 (1959) (doctrine of governmental immunity abolished with respect

to actions arising out of occurrence there and to cases arising in

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the future).

Confusing the issue even more is Brown. In Brown, the

defendant raised challenges to the supreme court's vacatur of his

death sentence and remandment for a new sentencing hearing. Brown,

204 Ill. 2d at 424-25. On October 18, 2002, the supreme court

issued its written decision, in which it vacated the defendant's

death sentence. Brown, 204 Ill. 2d at 425. Thereafter, the State

moved for a stay of the mandate pending the filing of certiorari

proceedings in the United States Supreme Court, which the supreme

court allowed. The defendant also filed a petition for rehearing

in November, which the Brown court found "prevented our decision

from being considered final." Brown, 204 Ill. 2d at 425. On

January 10, 2003, Governor Ryan commuted the defendant's death

sentence. In finding that Ryan's conduct rendered the defendant's

sentencing challenges moot, the Brown court found that "once

defendant filed a petition for rehearing in this case, the original

October 18, 2002, decision was not a final one and was subject to

modification." Brown, 204 Ill. 2d at 425. Accordingly, the court

concluded that as of January 10, 2003, "defendant remained under an

existing sentence of death." Brown, 204 Ill. 2d at 425. This case

seems to stand for the proposition that the October 18, 2002,

decision was not effective as of that date even though the supreme

court ultimately denied rehearing. Specifically, although the

supreme court had vacated the defendant's death sentence, it

nonetheless concluded that when Ryan commuted it, the defendant was

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still under an existing death sentence. Thus, in essence, the

supreme court found that its October 18, 2002, decision was not

effective as of that date.

To answer the certified question here, again, the core

question is to what cases does Robinson apply. Unlike those

reported decisions identified above, Robinson does not explicitly

state the date it was referring to as the "date of our decision,"

whether that date be the original filing date, the modified date,

some other date in the future, or some other definite event or

time. Thus, we must attempt to glean from the language used what

the Robinson court intended. With respect to the meaning of the

"date of our decision," we interpret this to mean September 25,

2003. Specifically, the Robinson court referred to the plaintiffs

who had "sought and received" extensions. This language is in the

past tense. If the Robinson court had intended for the modified

date to be the "date of our decision," we believe it would have

used the terms "seek and receive." However, this does not end our

analysis because the Robinson court included additional language,

which we find limits this date further. Specifically, the court

stated "beyond that section=s six month time limit commencing after

[September 25, 2003]." (Emphasis added.) Robinson, 346 Ill. App.

3d at 911. We find that this language means that the ruling

applies only to those cases where the six-month time limit began to

run as of September 26, 2003 (the day after the Robinson court's

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initial decision). Thus, by inference, the ruling applies only to

cases filed after September 25, 2003, because when a case is filed

naming respondents in discovery, the six-month term begins (or

commences) at that time. Commence means to "BEGIN, START,

ORIGINATE" (Webster's Third New International Dictionary 456

(1993)) and the only reasonable interpretation of this language, in

the context it was used, is that it refers to the six-month term

beginning as of September 26. There is no other logical reason to

use the term "commencing." By way of an example, a plaintiff filed

a complaint on September 26, 2003, and named John Smith as a

respondent in discovery. The plaintiff had until March 26, 2004,

to convert Smith to a defendant. However, if plaintiff knew he/she

would be unable to do so and on March 15 filed a motion for an

extension of time to convert Smith to a defendant, which was

granted to June 26, 2004, the Robinson ruling would apply.

Specifically, the six-month period commenced on September 26, 2003,

and the plaintiff sought and received an extension beyond that

limit. This extension would be controlled by Robinson and, thus,

would be improper. Based on the foregoing, we answer the certified

question in the case at bar in the affirmative, with the limitation

espoused above.

In the instant case, because plaintiffs= case does not fall

within the range of prospective application, i.e., their case was

filed before September 26, 2003, and, as such, defendants were

named as respondents in discovery prior to that date, thus the six-

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month period did not commence after the Robinson decision, the

custom and practice allowing for extensions and conversions in

existence before Robinson applied. Therefore, contrary to

defendants' argument, the trial court did not err in converting

them to defendants even though it was nine months after the

Robinson modified decision. This is particularly true given the

unique facts of this case. Accordingly, this cause is remanded to

the circuit court for proceedings consistent with our decision.

CONCLUSION

For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

Certified question answered; cause remanded.

CAHILL, P.J., and GORDON, J., concur.

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